Invertebrate Democrats and “Warrantless Wiretapping”

As the details of precisely what the "Protect America Act of 2007" contains start to be analyzed, it’s pretty clear that Congress ought to be ashamed of itself.  Moving beyond the Newspeak name of the bill itself, it’s pretty clear that this law violates the Fourth Amendment. 

Marty Lederman, writing at Balkinization, analyzes the key ambiguities in the Senate version of the bill:

The key provision of S.1927 is new section 105A of FISA (see page 2), which categorically excludes from FISA’s requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States."

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.;no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

There are many aspects of electronic surveillance which present serious constitutional "grey" areas, and as a society we haven’t even begun to discuss these issues seriously.  But one issue is not grey, and I highlighted it in bold in Lederman’s analysis.  The Fourth Amendment requires that people (by which we can read "citizen" or "legal resident" although it’s not clear whether the Founders wished that distinction to be made) be immune from search (which now includes electronic search or surveillance) without a due process requirement that demonstrates the "reasonableness" of the search, which hundreds of years of Anglo-American legal tradition, American constitutional law, Congressional and state statute, and Federal case law says means probable cause, judicial consideration and issuance of warrants

Congress, in its second most spineless act in quite awhile (the Military Commissions Act and restriction of habeas corpus was worse), has ratified the Administration’s previous warrantless wrongdoings and gutted the Fourth Amendment in a wide variety of situations.  So why did a Congress cut the Judicial Branch out of the loop and give the Executive Branch the power not only to legally conduct surveillance on U.S. citizens, but also to be the arbiter of when it was acceptable to conduct such surveillance?

My guess is that Congress has shown yet again that the "potential attack on American soil" trump card works every time:  no rational discussion of threats and potential courses of action is possible when the opposing side can shout you down with the simple mention of 9/11.  The major challenge we face in American politics today is getting beyond sloganeering so we can have a rational national discussion about how we are conducting the defense of the Republic against criminal and military threats we face.  Congress will not do this by itself:  right now the 16 Democrats in the Senate (and others in the House) that voted for this unconstitutional bill likely did so because they’re afraid for their re-election prospects if they don’t vote to give the President every power he asks for, should something happen.

Instead, Congressional Democrats are going to try to tell us that the bill was a good compromise, that there’s an automatic 6 month "sunset" provision in the final version, that the "real" debate will happen this fall.  This is utter bullshit, meant to misdirect those who don’t read past the headlines.  Again, I strongly recommend Marty Lederman’s post this morning on Balkinization:

As several of our commenters have noted, the so-called six-month sunset provision of the "Protect America Act of 2007" is a bit of a ruse. Although section 6(c) provide that the operative provisions of the Act "shall cease to have effect 180 days after the date of the enactment of this Act," i.e., on February 1, 2008, there is an express exception in section 6(d), which reads as follows:

AUTHORIZATIONS IN EFFECT.—Authorizations for the acquisition of foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration. Such acquisitions shall be governed by the applicable provisions of such amendments and shall not be deemed to constitute electronic surveillance as that term is defined in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.

6 1801(f)).


Thus, "acquistions" authorized by Attorney General Gonzales will be permissible for one year, even if that period extends beyond the ostensible February 1, 2008 sunset date. I think it’s fair to assume that the Attorney General with authorize a system of such acquisitions on or close to February 1, 2008, which will mean that the warrantless surveillance can continue until . . . February 1, 2009, or twelve days after the next President is sworn in.


Lederman shows that the "six month sunset" has an escape hatch for Gonzales and the President:  anything they authorize right before the sunset will remain active and legal, unless Congress takes extraordinary action, through the end of the Bush Administration.  Congressional Democrats in both houses need to be pressured by their constituents to close this loophole when the sunset provision kicks in.

And lest you think that the Administration will only use this power in surveillance of actual terror suspects, think again.  They can’t just listen in on those phone calls, faxes, or emails, without watching everything.  Citizens traveling overseas and calling their families at home.  Citizens doing legitimate business with companies overseas.  For that matter, citizens calling somebody who works at the same company but an overseas office.  Citizens talking to foreign relatives.  Scientists publishing their work in the prestigious journal Nature.  None of these ordinary activities, once essentially private matters that the Fourth Amendment was designed to keep private from government interference, are protected anymore.

In fairness, I should note that this isn’t a new problem.  We all know that the NSA has been tasked with, and struggles to keep up with, the job of electronic intelligence gathering worldwide, and has done so for decades.  So the reality is that much of our telecommunications has always been an open book.  What has changed is that with barely any fight at all, Congress just gave away the store, betraying long-established and well-understood civil liberties.  And for what?  Because the secret FISA court wasn’t enough?  Wasn’t fast enough?  Turned down too many warrants?  The evidence shows exactly the opposite.  FISA rarely ever turned down a warrant request, and FISA judges were on-call and maintained secrecy about the proceedings of the court.  FISA worked, from everything we’ve been told — by everyone except the Administration itself.  And nobody, including Congress, really trusts them anymore. 

So the only apparent explanation is another epidemic of butt-covering by Congress.  The only way such behavior will stop is if voters penalize elected officials that go spineless on us.  No campaign funding, no "automatic" votes just because the candidate is a Democrat.  Make these folks sweat their re-election, not for the reasons they do today, but because THEY know that WE know they’re selling our constitutional freedoms down the river in return for not being targeted by Fox News and right-wing pundits.  There’s an epidemic in America today, where a free people are willingly embracing the most authoritarian, the most unamerican measures, simply because our national conversation is dominated by fear-mongering.  And the only way to stop the spread of this is to make it perfectly plain to political candidates the grounds on which we’re judging their performance.    

I hate to say it, because I think ideological libertarians get economics wrong (I’ve talked some about this in the past, but it’s another post to discuss in detail), but I’m starting to wonder whether a principled libertarian stance isn’t the right solution here, at least until we get back to a place where Americans and their government take civil liberties seriously.  I’ll be pulling for Ron Paul in the Republican straw poll in Iowa, because from where I sit, the whole rest of the Republican pack look like knee-jerk authoritarians to me, and on the Democratic front I’m pretty sure Hillary is the most hawkish and authoritarian of the bunch. 

Wouldn’t Barack Obama, a constitutional law professor, versus Ron Paul, an avowed civil libertarian, be an interesting match-up in the general election?  Paul doesn’t stand a chance, but at least the debates between them might actually have substance.


Warning for visitors to Orwell’s gravesite:  stay well back, as George is probably spinning pretty close to escape velocity by now.   


One Comment so far. Comments are closed.
  1. Forty One others in the House of Representatives.

    Thanks for writing about the danger of the Protect America Act. Please keep up the good work.